SCOTUS to consider the Constitionality of the Voting Rights Act

The Supreme Court recently held oral arguments in the case of Shelby County v. Holder, considering the constitutionality of provisions of the Voting Rights Act.

This seemed to be generating a fair amount of discussion in the miscellaneous discussion thread, so it seemed appropriate to start a thread.

In typical fashion the media seems to be completely side-stepping the constitutional issues at hand, and instead focusing on questions like "is racism in the south dead?"... which I'm pretty sure is not the topic that the court will be ruling on.

I get that the contention is over Section 5 of the VRA relating to preclearance, but beyond that I'm somewhat in the dark regarding the actual matter of law. The Wikipedia entry merely notes that plaintiffs claim that Section 5 violates the 10th, 14th, and 15th amendments as well as Article IV of the constition... which doesn't really clear things up for me.

In its brief in the merits, Shelby County echoes the Court’s admonition in NAMUDNO that Section 5 imposes “current burdens,” which must be justified by “current needs.” Even if the states covered by Section 5 may have discriminated in the past, it argues, that does not automatically mean that they are still discriminating now, and Congress shouldn’t have passed new legislation renewing Section 5 until 2031 unless it put together evidence showing that the extension of the law was actually necessary – which it did not. And if some isolated problems do remain, there are other, less draconian remedies to combat them, such as filing a lawsuit under another provision of the VRA to challenge the discriminatory practice or procedure. Finally, even if Congress did accurately identify some instances of racial discrimination in voting, Shelby County asserts, there is no guarantee that Section 5 will help: because the criteria used to determine which states must comply with Section 5 use voter registration and turn-out data from the early 1970s, states that adopt discriminatory practices now may not be subject to Section 5 at all and vice versa.

In its brief, the federal government emphasizes a very different theme: Trust Congress. The government stresses that Congress’s 2006 decision to extend Section 5 was made only after Congress held twenty-one hearings, compiled thousands of pages of evidence, and concluded that Section 5 was still needed. The U.S. concedes that the “coverage formula” – the criteria used to determine who must comply with Section 5 – has not changed for quite a while, but it tries to reassure the Court that jurisdictions which are truly not discriminating against minority voters won’t find themselves having to comply with the preclearance requirement in perpetuity. As evidence for this, the government points to (and provides a long list of) the many jurisdictions that have in fact gotten a “bailout” from Section 5 from the federal government – i.e., have successfully applied to be removed from the list of jurisdictions that require preclearance.

What I find very interesting is Scalia's statements regarding racial entitlements and Congresses likelihood of every significantly changing them.

Quote:

Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reënacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it. That’s the— that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.

Equal protection applies to the government, and for the benefit of the people, not of state and local governments. This is especially BS since it helped enforce equal protection that the states were infringing. As long as the criteria are rational and do not simply single out states by fiat, it't not an issue. The government of MS was put under section 5 for years of bad behavior, and actual organized resistance to reform.

I was composing my last post when Starbuck posted this, but the quote from Scalia seems to touch upon equal protection issues:

Quote:

You have to show, when you are treating different States differently, that there’s a good reason for it. That’s the— that’s the concern that those of us who — who have some questions about this statute have.

My personal preference would be to have more uniform standards.

For example Texas tried to rush in a Voter ID law leading into the 2012 election to suppress minority (and therefore Democratic) turnout, and was denied due to pre-clearance. However here in Pennsylvania, our GOP-controlled legislature and Governor were able to do the same exact thing without any federal intervention, since we aren't subject to pre-clearance.

(The state superior court put the law on hold until the next election, but did not strike it down.)

I had figured up to this point that it was an equal protection issue, that of holding certain states and municipalities to a different set of rules than everyone else. It appears that isn't the case? Am I even right in assuming that equal protection applies to the states, or could congress make a law that applied to (say) Delaware and absolutely nobody else?

That seems to be the heart of the opposing argument. By forcing these rules on one state, or county, and not all you are punishing the people in that county in an unequal way.

If anything, I think the argument that in 2006 Congress based findings on 1970 data is be fairly compelling. Do we actually know if these laws are still needed? What is the metric to decide? Should we have added some? Removed others?

On the other hand, is it really the SCOTUS' job to decide if Congress acted appropriately rather than Constitutionally? It could very well be possible that Congress was negligent in reauthorizing the act, and that none of these places need to still be covered under Section 5, AND the law is still constitutional.

While I don't practice law in the voting rights arena specifically, I'll take a shot at explaining this. My analysis is drawn from quickly reviewing the summary of argument in the County's petition for certiorari.

The Question Presented in Shelby County's petition for certiorari is "Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution."

Shelby County's argument is constructed through the following propositions:

1. Congress failed to build a record of current conditions showing that the preclearance requirements of Section 5 are still necessary or appropriate. This is the "Congress hasn't shown that voting discrimination is a problem anymore" argument.

2. The coverage formula in Section 4(b) of the VRA treats sovereign states unequally, and Congress failed to document current conditions justifying that unequal treatment.

The County argues that the Fifteenth Amendment's guarantee that the "right of citizens ... to vote shall not be denied or abridged by ... any State on account of race..." does not usurp the States' sovereign power to regulate elections. In enforcing the Fifteenth Amendment, Congress must be reacting to actual constitutional violations and appropriately addressing them "without intruding into matters reserved to the States under the Tenth Amendment or unjustifiably denying equal State sovereignty."

Basically, the argument devolves to the assertion that there must be substantial justification for Congress to treat different states differently, and in the reauthorization of the VRA in 2006, Congress failed to establish that justification. Thus, the disparate treatment of certain states is unjustified and therefore a violation of the Tenth Amendment and Article IV.

I had figured up to this point that it was an equal protection issue, that of holding certain states and municipalities to a different set of rules than everyone else. It appears that isn't the case? Am I even right in assuming that equal protection applies to the states, or could congress make a law that applied to (say) Delaware and absolutely nobody else?

That seems to be the heart of the opposing argument. By forcing these rules on one state, or county, and not all you are punishing the people in that county in an unequal way.

If anything, I think the argument that in 2006 Congress based findings on 1970 data is be fairly compelling. Do we actually know if these laws are still needed? What is the metric to decide? Should we have added some? Removed others?

On the other hand, is it really the SCOTUS' job to decide if Congress acted appropriately rather than Constitutionally? It could very well be possible that Congress was negligent in reauthorizing the act, and that none of these places need to still be covered under Section 5, AND the law is still constitutional.

What I find most interesting in this case is what standard the Court elects to apply. Generally speaking, it looks like the County is arguing that Congress's renewal of the VRA in 2006 (particularly Section 5) lacked a rational basis. The "rational basis" test is the lowest level of Court scrutiny. In order for a law to survive a constitutional challenge under the rational basis test, all the Court has to do is find that there is any rational basis for its enactment, even if that basis is one with which the members of the Court personally disagree. Very few laws have been ruled unconstitutional under this level of scrutiny. However, Scalia's comments indicate that at least he is prepared to find that there was no rational basis for the 2006 VRA renewal.

I had figured up to this point that it was an equal protection issue, that of holding certain states and municipalities to a different set of rules than everyone else. It appears that isn't the case?

Have I even been right in assuming that equal protection applies to the states, or could congress make a law that applied to (say) Delaware and absolutely nobody else?

Equal protection per se doesn't apply to federal actions that treat different states differently, though such actions could implicate equal protection* if they impermissible treat people differently based on which state they live in (the test there would be rational basis, as state residency is not a suspect or quasi-suspect class).

That said there is a more abstract Constitutional principal, sometimes thought of as being located in the tenth amendment, sometimes in the notion of enumerated powers, that Congress can't treat different states differently without surmounting a high burden (the 'equal sovereignty doctrine').

The problem with the application of this doctrine in this area in my opinion is the pretty clear nature of the 15th amendment:

Quote:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Any reading that doesn't make section 2 superfluous implies that Congress is owed special deference in this area.

*Actually there is no federal equal protection clause, equal protection principles apply to the Federal government via reverse incorporation in the fifth amendment due process clause.

It seems to me that the conservative majority seems to be motivated by an ideology that seeks to create a republic in name only in the US by stripping ordinary citizens of meaningful representation and access to the courts to enforce their rights. That is certainly what Thomas believes in. Our votes will only count as long as we use them to legitimize what the oligarchs have already selected for us.

How can these guys claim to be reading the text of the constitution at all and then plan on completely ignoring the 15th. I would agree that VRA Sec 5 should be amended by Congress to include pre-clearing all election law changes for Federal elections and probably forcing states to standardize more. I would also argue for a complete ban on election law changes within 6 months of Federal election which would eliminate most of the "emergency" laws being passed in many states with the explicit goal of reducing turnout.

The County argues that the Fifteenth Amendment's guarantee that the "right of citizens ... to vote shall not be denied or abridged by ... any State on account of race..." does not usurp the States' sovereign power to regulate elections. In enforcing the Fifteenth Amendment, Congress must be reacting to actual constitutional violations and appropriately addressing them "without intruding into matters reserved to the States under the Tenth Amendment or unjustifiably denying equal State sovereignty."

Hey Faramir, correct me if I'm wrong on this, but my impression was that later amendments implicitly take precedence over earlier amendments and the original articles? Hence the 14th overriding the 3/5 provision in A1S2, the 19th overriding the "male inhabitants" clause of the 14th, the 21st completely repealing the 18th, etc. I mean, it's not like the text of anything that's overridden by a later amendment is struck. Based on this, Congress exercising their enforcement authority under the 15th would naturally override the 10th, and this argument about deference to the 10th would pretty much fall flat on its face.

No you're right. If there's a conflict the later amendment trumps the earlier. You can see this in civil rights litigation against states, where the 11th amendment would normally bar such suits, Congress can pierce state sovereign immunity using section 5 of the 14th amendment (which is identical to section 2 of the fifteenth) .

The Civil War amendments make it exceptionally clear that Congress has this power to require preclearance. But in my view they are unnecessary to even consider:

Quote:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Art I, sec. 4.

(The part about Senators is, in my view, abrogated by direct election). Thereafter, Congress need only have a rational basis to think that preclearance is useful to protect the right of citizens to participate in the democratic process (or frankly, for any purpose within Congress's competency). That is not a demanding standard at all. If any reasonable person could believe that the "covered" states could potentially interfere with that participatory right, Congress has free reign. That the VRA extends beyond regulating House elections is easily justified by the necessary and proper clause.

But once again the conservative majority on the court seems prepared to defend the "dignity" of states against the the rights of the people to protect the very fundamentals of their democracy. And that's a bit ironic in light of what happened in Bush v. Gore (where the Florida Supreme Court was arguably overruled on a question of Florida law in order to deliver the Presidential election to a man who would entrench that very conservative majority).

No you're right. If there's a conflict the later amendment trumps the earlier. You can see this in civil rights litigation against states, where the 11th amendment would normally bar such suits, Congress can pierce state sovereign immunity using section 5 of the 14th amendment (which is identical to section 2 of the fifteenth) .

Where the subject matter clearly overrides an earlier amendment or constitutional provision I don't think there's much issue, but I don't think we can interpret the "Congress shall have power to enforce this article by appropriate legislation" provision to mean that all other constitutional provisions can be safely ignored so long as the government argues that it's doing so in furtherance of the main goal of the amendment.

I don't see how we can assume that equal protection (or the similar doctrine of 'equal sovereignty') can simply be tossed because the Federal government is going so in the name of enforcing the 15th Amendment.

That's reasonable as a general proposition, but in this specific case the fourteenth and fifteenth amendments were passed specifically to legitimate the Reconstruction Acts and other legislative enactments of the Radical Republicans. Those laws' abridgments of the concept of equal soverignty make section 5 of the VRA look trivial.

On the other hand, is it really the SCOTUS' job to decide if Congress acted appropriately rather than Constitutionally? It could very well be possible that Congress was negligent in reauthorizing the act, and that none of these places need to still be covered under Section 5, AND the law is still constitutional.

Ignoring whatever other issues people may have with Justice Scalia's comments, this is the part that struck me the most: what authority does the SCOTUS have to determine that a law is unnecessary and reauthorized only because Congressmen see no downside voting for renewel and potential downside for voting against it? I'm sure they could write the opinion to make seem like a ruling based on Constitutionality but it seems like activist judicial behavior...it's not their job to decide what is a "bad" law.

I call this Carolene Products through the looking glass because it’s a fun-house inversion of Footnote Four.[*] Let us note that until this month, the Senate has never, in its history, had two black Senators serving at once. Yet we are supposed to believe that black people—the quintessential discrete and insular minority for purposes of equal protection scrutiny—are so powerful, so overwhelmingly powerful in our politics, that no Senator can stand in the way of their “racial entitlements,” and thus courts must step in. This is an amazingly conspiratorial view of our politics. It sounds like John Hart Ely as told by Glenn Beck.

Justice Scalia made the intriguing suggestion at oral argument today that this concept of racial entitlement “has been written about.” Presumably he is suggesting that he is not the source. I am not aware of any political science argument of this shape, but perhaps I am not reading the right kinds of journals; if anyone has an idea of what Justice Scalia is referring to, I’d love to read it in the original. Alternatively, it may be, more disappointingly, that Justice Scalia is simply making an analogy between the idea of entitlements in general being difficult to repeal once enacted, and the Voting Rights Act’s provisions being difficult to sunset once enacted.

And in one sense perhaps that is right. As I’ve argued on this blog, the Affordable Care Act is an entitlement that will be extremely difficult if not impossible to reverse. The American people will, over time, become accustomed to the idea that they cannot be denied health insurance. That will become part of the social compact. Similarly, I think the Voting Rights Act—not the specific procedural mechanism of Section Five, but the VRA as a whole—is part of the American firmament. Americans generally agree that minority voters have a right, or perhaps we should say a “racial entitlement,” not to be discriminated against. Protecting that entitlement requires strong procedural protections—if not Section Five as it stands today, than some other different but similarly robust measures, to which Justice Scalia will also likely object on one ground or another.

If reauthorizing Section Five amounts to discrimination on the basis of race (in favor of racial minorities), then perhaps we ought to paraphrase (and invert) the Chief. If you want to stop Congress from doing things like reauthorizing Section Five, then stop Alabama legislators from viewing black voters as “illiterates” and “aborigines.” Get Texas legislators to stop intentionally drawing district lines that freeze out rising minority populations just as they are about to win a district. The way to stop Congress from discriminating on the basis of race is to stop all this discrimination on the basis of race.

I would say this is just Scalia turning into a senile old man. But in reality I think he's just being the same right wing asshole he always has been. His solicitude for the constitutional protection of actual "discrete and insular minorities" is shall we say, not often evident.

Quote:

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “`bare . . . desire to harm'” homosexu­als, ante, at 13, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifi­cally approved by the Congress of the United States and by this Court.

In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U.S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality, ante, at 13, is evil. I vigorously dissent.

The states are not entitled to equal protection. The citizens of those states are, which is where the VRA falls down. By imposing a burden on voters in Alabama that isn't shared by voters in Montana, the federal government needs a really good reason.

But it doesn't have one. No one is seriously suggesting that the modern state governments have a racial basis for establishing its voting structures.

Instead what is happening right now is that the Obama Administration is attempting to misuse the VRA to protect the Democratic Party. Argue all you want about whether it's scurrilous state Republicans doing the 'rigging', the fact is that such 'rigging' is a legitimate - if sketchy - part of the business of state government. But it's not a legitimate power of the federal government for one party to manipulate state elections to favor their political interests.

Instead what is happening right now is that the Obama Administration is attempting to misuse the VRA to protect the Democratic Party. Argue all you want about whether it's scurrilous state Republicans doing the 'rigging', the fact is that such 'rigging' is a legitimate - if sketchy - part of the business of state government. But it's not a legitimate power of the federal government for one party to manipulate state elections to favor their political interests.

How so? Aside from Virginia, all of the states requiring pre-clearance under Section 5 are reliably red states.

The states are not entitled to equal protection. The citizens of those states are, which is where the VRA falls down. By imposing a burden on voters in Alabama that isn't shared by voters in Montana, the federal government needs a really good reason.

They're not imposing a burden on voters, they're imposing a burden on the state goverment, and the state electoral commission.

They're not imposing a burden on voters, they're imposing a burden on the state goverment, and the state electoral commission.

They are denying the voters the ability to change their election laws through their representatives.

Some of the changes stopped by pre-clearance were functionally identical to laws existing in other states that did not require pre-clearance. When you claim that a law is perfectly fine in Pennsylvania but some sort of horrible exercise in racism when used in Alabama, you're not arguing about the validity of the law - you're favoring Pennsylvanian voters.

eXceLon wrote:

How so? Aside from Virginia, all of the states requiring pre-clearance under Section 5 are reliably red states.

Like the reliably 'red' state of New York?

Hytes wrote:

But it's a legitimate power of state governments for one party to manipulate state elections to favor their political interests?

Both parties gerrymander their districts - why else do you think that the Northeast reliably sends all-blue contingents to the House? Even in the deepest blue of states, you're still talking 20%-30% Republicans with 0% Republican House/Senate members.

However, this really isn't about gerrymandering. The VRA exists for a specific purpose: to protect certain minority groups from having their votes denied based on their membership in that group. What the Obama Administration is using it for is to confer electoral advantage on Democrats. Full stop. The Obama Administration's pre-clearance objections have nothing at all to do with race. They have to do with the fact that they believe election laws that are considered valid everywhere else might prove to be disadvantageous to Democrats.

What the Obama Administration is using it for is to confer electoral advantage on Democrats. Full stop. The Obama Administration's pre-clearance objections have nothing at all to do with race. They have to do with the fact that they believe election laws that are considered valid everywhere else might prove to be disadvantageous to Democrats.

Do you have any evidence of that? Do you have a electoral change that the Admin denied unfairly?

What the Obama Administration is using it for is to confer electoral advantage on Democrats. Full stop. The Obama Administration's pre-clearance objections have nothing at all to do with race. They have to do with the fact that they believe election laws that are considered valid everywhere else might prove to be disadvantageous to Democrats.

Do you have any evidence of that? Do you have a electoral change that the Admin denied unfairly?

Further, I'm sure Obama and every fan of the VRA in this thread would rather the rules apply to all states rather than some or none.

But it's a legitimate power of state governments for one party to manipulate state elections to favor their political interests?

Both parties gerrymander their districts - why else do you think that the Northeast reliably sends all-blue contingents to the House? Even in the deepest blue of states, you're still talking 20%-30% Republicans with 0% Republican House/Senate members.

Uh, unless through gerrymandering, getting 20-30% of the vote in your state doesn't get you elected in our system.

In very small states, having a small minority of Republicans means no representatives, if they are spread out. In New Jersey, we have enough Republicans, and they concentrate in some counties, so they can elect people to the HoR. There is no gerrymandering in the reliably Democratic states that even approaches that in states like TX, MS, AL and SC. Not even close.

And that's based on a history of intimidation and criminal terroristic threats. For all the talk about Chicago politics, that ain't nothing on cross burning, lynching, and even today, groups of tough guys in truck beds with shotguns gathering in sight of polling places, as well as purposefully publishing incorrect and threatening information in Spanish in some states.

But it doesn't have one. No one is seriously suggesting that the modern state governments have a racial basis for establishing its voting structures.

The county bringing this case has a city which tried to implement a discriminatory redistricting in 2006. 2012 showed that state governments are all too willing to tweak the rules in ways which have racial bias if it is beneficial to them. I think you have to be blind to think that there's no place anymore for the kind of protections VRA provides.